First Amendment - Anti-SLAPP - California Constitution - grpub.net

First Amendment

The American Bar Association (ABA), notorious for being behind the times, made a proud public proclamation of moving into the 21st century earlier this month. Finally weighing in on what it called the “newest format” of legal commentary, the legal blog, the ABA told attorneys not to reveal confidential information when writing one. The warning is far from groundbreaking, but the breadth of the prohibition is like an awkward joke. At Myers Freelance, we keep up with the recent developments in the world of online legal marketing and legal blogging, so we’ve read the Opinion. We’re going to call it what it is: An embarrassment to the legal field. ABA Formal Opinion 480 and Model Rule 1.6(a) The ABA’s Formal Opinion 480 was published on March 6, 2018, and marks a long-overdue foray into the world of legal blogging. On reading it, though, one is left with the impression that they should’ve just kept clear. The onus of the Opinion is that: Lawyers…

Leah Litman returns to the co-host chair to join Ian for a look ahead at the March sitting. We preview National Institute of Family and Life Advocates v. Becerra, a case at the intersection of abortion and the First Amendment. We’ll also talk about Sveen v. Melin, a contracts clause case that will determine what happens to life insurance after divorce. But before we get into those, we try something new– flagging a few interesting cert petitions that we’ll watch as they make their way through the court’s discussion lists. There are also birthdays and anniversaries to celebrate, as well as some key corrections to issue. The post OT2017 #18: “Legal Faux Pas” appeared first on SCOTUSblog.

by guest blogger Alex F. Levy 18 U.S.C. §2421A(a) violates the First Amendment. While “[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection,” this provision prohibits far more than that. U.S. v. Williams, 553 U.S. 285, 286. Indeed, it criminalizes, inter alia, “operat[ing] an interactive computer service with the intent to promote or facilitate the prostitution of another person” even in jurisdictions in which prostitution is legal. 18 U.S.C. §2421A(a). (The fact that there is an affirmative defense available does not change the fact that, strictly speaking, the provision criminalizes protected speech.) Unlike the SAVE Act, which prohibits the knowing advertisement of trafficked sexual services, this statute implicates constitutionally protected speech. See 18 U.S.C. §1591(a). In Backpage v. Lynch, plaintiffs were unable to assert standing to enjoin enforcement of the SAVE Act…

A snip from the abstract from Heather M. Whitney’s Search Engines, Social Media, and the Editorial Analogy (Mar. 1, 2018): Some prominent commentators claim that Facebook is analogous to a newspaper and that its handling of a feature like Trending Topics is analogous to a newspaper’s editorial choices. As a result, these commentators find congressional scrutiny of such matters to be constitutionally problematic. Moreover, the editorial analogy has been a remarkably effective shield for these tech companies in litigation. In a series of lower court cases, Google and others have argued that their decisions concerning their platforms — for example, what sites to list (or delist) and in what order, who can buy ads and where to place them, and what users to block or permanently ban — are analogous to the editorial decisions of publishers. And like editorial decisions, they argue, these decisions are protected “speech” under the First Amendment.…

Today the justices kick off the March session by hearing oral argument in Sveen v. Melin, which asks whether a state law that automatically nullifies the designation of a former spouse as a life-insurance beneficiary upon divorce violates the Constitution’s contracts clause. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Shelby Garland and Jonathan Kim preview the case for Cornell Law School’s Legal Information Institute. Kimberly Robinson and Jordan Rubin discuss Sveen at Bloomberg Law’s Cases and Controversies podcast. Counting to 5 (podcast) previews the three cases that will be argued this week, and The George Washington Law Review’s On the Docket blog offers previews of all the cases in the March argument session. At the Associated Press, Mark Sherman reports on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law that, among other…

Anti-SLAPP

Even in times of relative calm, employers sometimes feel that every personnel decision carries the risk of legal liability. Of course, in times of crisis, an employer must often act decisively to protect its business and its reputation. The following case is a cautionary tale about decisive action and one type of legal risk: defamation claims. Although this particular case turned on a legal technicality, it’s useful to show how communicating about your reasons for taking an adverse action can turn into litigation. Background Steward Carney Hospital operated an adolescent psychiatric unit. In April 2011, there were four incidents of patient abuse or neglect in the unit. The hospital immediately notified the Massachusetts Department of Mental Health (DMH), the state agency that issued its operating license. An investigation began, admissions were halted, and employees were placed on administrative leave. In addition, DMH considered revoking the hospital’s license for…

Even in times of relative calm, employers sometimes feel that every personnel decision carries the risk of legal liability. Of course, in times of crisis, an employer must often act decisively to protect its business and its reputation. The following case is a cautionary tale about decisive action and one type of legal risk: defamation claims. Although this particular case turned on a legal technicality, it’s useful to show how communicating about your reasons for taking an adverse action can turn into litigation. Background Steward Carney Hospital operated an adolescent psychiatric unit. In April 2011, there were four incidents of patient abuse or neglect in the unit. The hospital immediately notified the Massachusetts Department of Mental Health (DMH), the state agency that issued its operating license. An investigation began, admissions were halted, and employees were placed on administrative leave. In addition, DMH considered revoking the hospital’s license for…

Even in times of relative calm, employers sometimes feel that every personnel decision carries the risk of legal liability. Of course, in times of crisis, an employer must often act decisively to protect its business and its reputation. The following case is a cautionary tale about decisive action and one type of legal risk: defamation claims. Although this particular case turned on a legal technicality, it’s useful to show how communicating about your reasons for taking an adverse action can turn into litigation. Background Steward Carney Hospital operated an adolescent psychiatric unit. In April 2011, there were four incidents of patient abuse or neglect in the unit. The hospital immediately notified the Massachusetts Department of Mental Health (DMH), the state agency that issued its operating license. An investigation began, admissions were halted, and employees were placed on administrative leave. In addition, DMH considered revoking the hospital’s license for…

Even in times of relative calm, employers sometimes feel that every personnel decision carries the risk of legal liability. Of course, in times of crisis, an employer must often act decisively to protect its business and its reputation. The following case is a cautionary tale about decisive action and one type of legal risk: defamation claims. Although this particular case turned on a legal technicality, it’s useful to show how communicating about your reasons for taking an adverse action can turn into litigation. Background Steward Carney Hospital operated an adolescent psychiatric unit. In April 2011, there were four incidents of patient abuse or neglect in the unit. The hospital immediately notified the Massachusetts Department of Mental Health (DMH), the state agency that issued its operating license. An investigation began, admissions were halted, and employees were placed on administrative leave. In addition, DMH considered revoking the hospital’s license for…

* Adam Feldman uses BriefCatch, a powerful new tool from legal writing guru Ross Guberman, to find the best writers in the Supreme Court bar -- and some of the top advocates might surprise you. [Empirical SCOTUS] * Prominent First Amendment litigator Charles Glasser makes the (compelling) case in favor of a federal anti-SLAPP statute. [Daily Caller] * Jeff Hauser, executive director of the Revolving Door Project, argues that the Trump Justice Department's installation of Trump allies as interim U.S. attorneys "represent[s] a test of civil society’s ability to fight back against threats to the rule of law" -- and so far, "the test is going poorly." [Slate] * Speaking of the Trump DOJ, Ben Adlin breaks down the latest federal-state fight -- and explains why it's not as simple as just citing the Supremacy Clause. [Leafly] * "Bring me a case!" Reflections from Joel Cohen and Bennett L. Gershman on using litigation to bring about…

Fox Broadcasting Co. has come out swinging against a $30-million lawsuit by the estate of Muhammad Ali for unauthorized use of the late boxing legend’s image in a 2017 Super Bowl promotional spot entitled “The Greatest.” Last October, Muhammad Ali Enterprises, LLC (MAE), filed a complaint against Fox in the Northern District of Illinois alleging violation of Ali’s publicity rights under Illinois and federal law. The parties later agreed to transfer the case to the Northern District of California, where both parties are located. In its motion to dismiss filed January 16 in Oakland federal court, Fox claims the suit is barred by the First Amendment, Illinois and California statute, and preempted by the federal Copyright Act. Its primary defense is that the Super Bowl, and Ali himself, are matters of public interest and therefore exempt from statutory publicity protections, and also that the spot is exempt as part of a sports broadcast. Fox argues that…

California Constitution

Well, looks like Californians won't be donning gray uniforms and replacing the bear flag with the stars and bars. Initiative 17-0005, filed by Cindy Sheehan et al., has failed to qualify. The AG's summary of the initiative, minus the cost part, is:Repeals provision in California Constitution stating California is an inseparable part of the United States. Directs Governor, in consultation with those members of Congress who represent California, to negotiate continually greater autonomy from federal government, up to and including agreement establishing California as a fully independent country, provided voters agree to revise the California Constitution. Creates new state commission to research and make recommendations on ways of increasing California's autonomy and independence.I'm so relieved.

It’s been 337 days since Justice Kathryn Werdegar announced her retirement, and Governor Jerry Brown has yet to name her replacement. The delay is causing both consternation and puzzlement. Nonetheless, work goes on at the short-handed Supreme Court, which today released its March oral argument calendar with a whopping 14 cases. All 14 cases will have pro tem justices (one case will have two pro tems because of a recusal), assigned alphabetically for the most part (and we’re back to the start of the alphabet this month). That will bring to an astounding 56 the number of cases with pro tems since Justice Werdegar left the court. Pro tems risk an institutional problem (see here, here, and here), which already manifested itself late last year. On March 6, 7, and 8, in San Francisco, the court will hear the following cases (with the issue presented as summarized by court staff or framed by the court itself): Liberty Surplus Insurance Corp. v.…

The California Constitution and a statute require all state judges, including Supreme Court justices, to decide each case pending before them within 90 days of the case’s submission for decision. (The consequence of violating the 90-day rule is not getting paid.) Supreme Court cases are typically submitted as soon as oral argument concludes. So, it looked like there was a problem when the Supreme Court announced it would not file any opinions tomorrow — the 90th day after the court’s November calendar — even though there are still two undecided cases that were argued on that calendar. No worries. As provided by court rule, submission was delayed in both undecided cases for post-argument supplemental briefing, which is uncommon but not exceedingly rare. (See, e.g., here and here.) In Solus Industrial Innovations, LLC v. Superior Court, the case was submitted one week after argument when a response to a supplemental brief was…

In Sierra Palms Homeowners Ass'n v. Metro Gold Line Foothill Extension Const. Auth., No. B275241 (Jan. 29, 2018), a condomimium homeowners' association sued a municipal transit authority and its private-entity partner, claiming that they built and maintained the Gold Line railway in such a way that it interfered with the association's quiet enjoyment of their condo. They alleged inverse condemnation. The trial court sustained the demurrer without leave to amend (dismissed the complaint, for you non-Californians) for lack of standing because the homeowners' association didn't actually own the condo. The Court of Appeal reversed, in part, concluding the association might be able to amend the complaint to show standing. Although the usual rule in inverse cases is that the plaintiff must have an actual ownership interest in the property alleged to be taken, "multidwelling condominium projects present a special concern. Frequently, the…

UC Berkeley Law Dean Erwin Chemerinsky is the left coast version of Harvard’s Larry Tribe, sans the candlelit dinner with Louise Mensch. There isn’t a progressive cause he won’t embrace. Until now, and for that, one is constrained to wonder: How utterly awful must something be for it to be too far over the line for Chemerinsky? The “something” is Stanford law professor Michele Dauber’s war against Judge Aaron Persky. The effort to recall Judge Aaron Persky, which has submitted signatures to be on the ballot in Santa Clara County in June, is misguided and a threat to judicial independence. If there is disagreement with a judge’s decision, the appropriate remedy is to appeal the ruling, not to seek removal of the judge. Such recall efforts are a serious threat to judicial independence as judges will fear that unpopular rulings will cost them their jobs. Justice, and all of us, will suffer when judges base their decisions on what…

The Ninth Circuit today asks the Supreme Court to answer questions regarding California usury law and insurance companies. In Wishnev v. Northwestern Mutual Life Insurance Company, the federal appeals court wants help with these state law issues: 1. Are the lenders identified in Article XV of the California Constitution, see Cal. Const. art. XV, § 1, as being exempt from the restrictions otherwise imposed by that article, nevertheless subject to the requirement in section 1916-2 of the California Civil Code that a lender may not compound interest “unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith”?, and 2. Does an agreement meet the requirement of section 1916-2 if it is comprised of: (1) an application for insurance signed by the borrower, and (2) a policy of insurance containing an agreement for compound interest that is subsequently attached to the application, thus…